Jharkhand High Court
The Union Of India vs Budhdeo Singh on 3 October, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.335 of 2021
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1. The Union of India, through its Secretary, Department of Home,
Govt. of India, Central Secretariat, P.O. & P.S.-Central Secretariat,
New Delhi.
2. The Central Industrial Security Force through the Director General
Central Industrial Security Force, Unit Bokaro Steel Limited, P.O.
& P.S.-Bokaro Steel City, Bokaro, Jharkhand.
3. The Director General, the Central Industrial Security Force, Unit
Bokaro Steel Limited, P.O. & P.S.-Bokaro Steel City, Bokaro,
Jharkhand.
4. The Deputy Inspector General, the Central Industrial Security
Force, Unit Bokaro Steel Limited, P.O. & P.S.-Bokaro Steel City,
Bokaro, Jharkhand.
5. The Commandant - Disciplinary Authority, Central Industrial
Security Force, Bokaro Steel Plant, Bokaro Steel City, P.O. & P.S.-
Bokaro Steel City, Bokaro, Jharkhand.
6. The Deputy Commandant/Administration C.I.S.F. Unit Bokaro
Steel Limited, P.O. & P.S.-Bokaro Steel City, Bokaro, Jharkhand.
Appellant No.1 to 4 and 6 are duly represented through the duly
authorized signatory being appellant No.5 (The Commandant -
Disciplinary Authority, Central Industrial Security Force, Bokaro
Steel Plant, Bokaro Steel City, P.O. & P.S.-Bokaro Steel City,
Bokaro, Jharkhand) .... .... Respondents/Appellants
Versus
Budhdeo Singh, son of Shyam Bihari Singh, resident of Civil Line,
Punjabi Mohalla, P.O. & P.S.-Buxar, District-Buxur, Bihar
.... .... Petitioner/Respondent
CORAM : HON'BLE MR JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellants-UOI : Mr. Anil Kumar, Addl. S.G.I.
Mr. Ravi Prakash, CGC
For the Respondent : Mr. Rupesh Singh, Advocate
1 LPA No.335/2021
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C.A.V. on 05.09.2024 Pronounced on 03/ 10/2024
Per Sujit Narayan Prasad, J.
Prayer
1. The instant appeal under Clause-10 of Letters Patent is
directed against the order dated 04.05.2021 passed by the learned
Single Judge of this Court in W.P.(S) No.569 of 2009, whereby and
whereunder, while partly allowing the writ petition, the learned Single
Judge has quashed and set aside the order dated 26.12.2001 by
remitting the matter back to the respondent no.4 to pass a fresh
order.
Facts
2. The brief facts of the case, as per the pleading made in the writ
petition required to be enumerated, which reads as under:-
3. It is the case of the writ petitioner that the writ petitioner was
deputed for Night shift for armed patrolling duty in the intervening
night 22/23-07-2001 from 2100 hours to 0500 hours at camp no.II
store. During his duty, it was reported that some criminal have stolen
1.040 MT Brass guides from his duty beat. In the intervening night,
the Bokaro Steel City Police recovered 1.040 MT Brass guides from
near the Air Strip Boundary wall which was just outside the camp-II
store area and the police also arrested a criminal.
4. Thereafter, the police party went to Camp II store and met ASI
Mr. S.N.Roy and informed him about the recovered Brass guides and
wanted to see the lock and seal of the store and its surrounding
area. Thereafter, police party went to the camp II store to see the
Brass guide recovered by the police which was kept near the Air
Strip Boundary wall.
5. In contemplation with the aforesaid theft; a charge-sheet was
issued to the writ petitioner to which he filed a detailed reply denying
all the charges and thereafter, a departmental proceeding was
initiated and the enquiry officer has held him guilty and submitted its
enquiry report and pursuant thereto, the disciplinary authority
imposed punishment of removal from service.
6. The writ petitioner challenged the aforesaid order of removal
before the appellate authority, but the appellate authority dismissed
the appeal and did not interfered with the order of removal. 6. In the
meantime, the police also lodged an F.I.R. and a criminal case being
G.R. Case No. 686 of 2001 read with T.R. No. 354 of 2008 has been
initiated/proceeded against this petitioner.
7. However, the writ petitioner was acquitted in the criminal case
on 29.08.2008. Thereafter, the writ petitioner filed a representation
before the respondent no.6, however, the same was rejected
summarily.
8. Being aggrieved with the aforesaid, the writ petitioner has filed
writ petition being W.P.(S) No.569 of 2009.
9. It is evident from the factual aspect that the writ petitioner is the
member of the disciplined force working as Constable and was
assigned the duty for night shift for armed patrolling duty in the
intervening night 22/23-07-2001 from 2100 hours to 0500 hours at
camp no.II store. It was reported that some criminals have stolen
1.040 MT Brass Guides from his duty beat. In the intervening night,
the Bokaro Steel City Police had recovered 1.040 MT Brass Guides
from near the Air Strip Boundary Wall which was just outside the
camp-II store area and the police also arrested a criminal. The Police
Party, thereafter, went to Camp II store and met ASI Mr. S.N.Roy and
informed him about the recovered Brass guides and wanted to see
the lock and seal of the store and its surrounding area.
10. The writ petitioner was acquitted in the criminal case being
G.R. Case No.686 of 2001 read with T.R. No.354 of 2008, however,
the disciplinary authority has initiated a disciplinary proceeding. Both
the proceedings have gone together. However, the disciplinary
proceeding was concluded on 18.10.2001 prior to conclusion of the
criminal proceeding, by which, the writ petitioner has been removed
from service on the ground of acceptance of finding recorded by the
inquiry officer of gross dereliction in duty, misconduct and
indiscipline.
11. The respondent-writ petitioner, however, has preferred an
appeal against the aforesaid order passed by the original authority
but the same has also been dismissed vide order dated 26.12.2001.
12. The respondent-writ petitioner after the order of dismissal from
service, has been acquitted from the criminal liability on conclusion
of the trial pertaining to G.R. Case No.686 of 2001 corresponding to
T.R. No.354 of 2008.
13. The respondent-writ petitioner, thereafter, has made
representation before the authority for recall of the order of dismissal
on the ground of acquittal in the criminal case but while passing the
order on 04.10.2008 in the said representation, the concerned
authority has given finding that the criminal and the departmental
proceeding are two different proceedings.
14. The respondent-writ petitioner, being aggrieved with the
aforesaid, has preferred the writ petition being W.P.(S) No.569 of
2009 challenging the order of dismissal upheld by the appellate
authority, as also, the order passed in the representation dated
26.12.2001 and 04.10.2008 respectively.
15. The learned Writ Court has called upon the respondent,
wherein, the ground which was taken on behalf of the writ petitioner
has seriously been disputed. The ground has been taken that
acquittal in criminal case is having no bearing with the departmental
proceeding and the departmental proceeding has already ended with
the order of punishment.
16. Learned Single Judge has not agreed with the view taken on
behalf of the appellant-respondent and by considering the reason of
violation of principle of natural justice, has quashed the order passed
by the appellate authority by remitting the matter back to the
appellate authority for passing the fresh order, which is the subject
matter of the present appeal.
Arguments of the Appellant-UOI
17. Mr. Anil Kumar, learned Addl. S.G.I. appearing for the
appellant-UOI has taken the following ground in assailing the
impugned judgment:-
(i) The learned Single Judge has not appreciated the legal
issues that bearing of the criminal case is having no impact upon the
concluded departmental proceeding.
(ii) It has been submitted that the ground of violation of
principle of natural justice has been considered, which led the
learned Single Judge to interfere with the order passed by the
appellate authority but while doing so, the learned Single Judge has
not appreciated the fact in right perspective that the order of
dismissal is of the year, 2001, while the writ petition has been filed on
05.02.2009, after lapse of 8 years and therefore, the order of
dismissal has been accepted for about 8 years and only after
acquittal in the criminal case, the claim of the respondent-writ
petitioner for recall of the order of dismissal, has not been taken into
consideration by the authority concerned, then, the writ petition has
been filed challenging the order of the disciplinary authority, the order
passed by the appellate authority as well as the order passed in the
representation.
(iii) The learned Single Judge has not appreciated the fact
that once the respondent-writ petitioner has accepted the order for 8
years and as such, the same cannot be available for the writ
petitioner to question the same and on that ground only, the learned
Single Judge ought to have dismissed the prayer made in the writ
petition but the learned Single Judge has entertained the said prayer
only on the ground that after acquittal in the criminal case, the claim
of the writ petitioner for recall of the order of dismissal has not been
considered, which has got no bearing with the decision already taken
by the disciplinary authority on conclusion of the departmental
proceeding.
(iv) So far as the issue of violation of principle of natural
justice is concerned, if the writ petitioner was at all aggrieved, then,
he, ought to have approached the writ court or the appropriate forum
challenging the order of dismissal immediately after the finality has
attained after approval of the same by the appellate authority but he
has not chosen to challenge, rather, he has challenged the said
order after lapse of 8 years.
18. The learned Single Judge, therefore, has committed an error in
allowing the writ petition by remitting the matter before the appellate
authority to pass fresh order.
Arguments of the respondent-writ petitioner
19. Mr. Rupesh Singh, learned counsel for the respondent-writ
petitioner has taken the following grounds in defending the impugned
judgment:-
(i) The learned Single Judge has committed no error in
passing the order, reason being that, the question of principle of
natural justice was the subject matter having been agitated on behalf
of the respondent-writ petitioner and when it has been found to be
available from bare perusal of the inquiry report, then, in such
circumstances, if the order of the appellate authority has been
quashed and set aside for its re-consideration, then the same cannot
be said to suffer from an error.
(ii) The argument which has been advanced on behalf of the
appellant-UOI that the department proceeding is having no bearing
with the criminal case, the aforesaid legal issue will not be applicable
in the facts and circumstances of the case, reason being that, the
departmental proceeding although has been concluded on
18.10.2001 and further by the appellate authority on 26.12.2001, but
on acquittal in a criminal case, if the foundation of the very allegation
has gone, then, nothing remains to be decided by the disciplinary
authority and if any decision has been taken, the same will have to
be recalled depending upon the outcome of the criminal case. But,
the respondent authority without considering the aforesaid aspect of
the matter has rejected the said representation and as such, if that
has been taken into consideration by the learned Single Judge, the
same cannot be said to suffer from an error.
20. The learned counsel for the respondent-writ petitioner, based
upon the aforesaid grounds, has submitted that the impugned
Judgment, therefore, needs no interference.
Analysis
21. We have heard the learned counsel for the parties and gone
across the finding recorded by the learned Single Judge in the
impugned judgment as also the pleading made as available in the
paper book, wherein, the copy the writ petition has also been
appended as per the High Court Rules.
22. The undisputed facts in this case is that the writ petitioner while
working as Constable was assigned duty in Night shift for armed
patrolling and in the night shift, some articles have been stolen of the
Bokaro Steel Limited, based upon that, an FIR was instituted as also
the departmental proceeding has been initiated against the writ
petitioner.
23. The allegation, as per the memorandum of the charge is
regarding failure in discharge of the official duty, for ready reference,
the relevant content of the charge is being referred as under:-
"आरोप- ।
अनुशासन एवं िनयमों का ितकुल यह है िक बल सं ा
963513849 आर क बी डी िसंह "जे" समवाय केओसब
इकाई, बीएसएल बोकारो को "जे" समवाय के रा ी पारी
कत िववरण तैनाती चाट के अनुशार िदनांक
22/23,07,2001 को रा ी पारी म समय 2100 बजे से समय
0500 बजे तक कै ।। ोर म हिथयार एवं गोला बा के
साथ ग िडयूटी के िलए तैनात िकया गया था तो िदनांक
22/23,07,2001 को रा ी समय म ही कुछ चोरो/ अपराधी
त ों ारा ोर ।। से िकए गये 01.040 एम०टी० पीतल
ै प के चोरी को रोकने म असमथ रहा। आर क का
उपरो कृत काय कत के ित घोर लापरवाही, कदाचार
एवं अनुशासनहीनता को दशाता है । अतः आरोप आरोिपत
है ।
आरोप- ।।
अनुशासन एवं िनयमो का ितकुल यह है िक बल सं ा
963513849 आर क बी डी िसंह "जे" समवाय केओसब
इकाई, बीएसएल बोकारो को िदनांक 22/23.07.2001 को
रा ी समय म 2100 बजे से समय 0500 बजे तक कै ।।
ोर म हिथयार एवं गोला बा के साथ ग िडयूटी के
िलए तैनात िकया गया था तो िदनांक 22/23.07.2001 को
रा ी म कै ।। ोर म चोर ारा की गई समान की चोरी
के संबंध म िदनांक 23.07.01 को रा ी म जब बोकारो िसटी
थाना के पुिलस अिधकारी जॉच-पड़ताल करने हे तु कै ।।
प ंचे और सउपिन/का एस एन राय को साथ म ले कर ोर
का ताला और दीवार को चेक िकए और उसके प ात पो
कमा र सउपिन/का एस एन राय को पुिलस दल के साथ
चोरो से बरामद िकया गया मान को दे खने के प ात वापस
कै ।। प ंचे िफर भी सं ा 963513849 आर क बी डी
िसंहकै ।। ोर म तैनात उपरो घिटत घटना के संबंध
म स म अिधकारी को सूचना नहीं िदया वल सं ा
963513849 आर क बी डी िसंह का उपरो कृत काय
कत के ित घोर लापरवाही, कदाचार एवं
अनुशासनहीनता का ितक है । अतः आरोप आरोिपत है ।"
24. The criminal case has been set at motion on the ground of theft
of 1.040 MT Brass Guides. However, the stolen material was
recovered by the District Police of the Bokaro Steel City Police
Station.
25. But, the admitted fact is that within the premises of the Unit,
the materials of the Unit have been stolen.
26. It is also the admitted fact that the respondent writ petitioner
was assigned duty to discharge his night shift duty nearby the place
from where the material was stolen.
27. The departmental proceeding has proceeded. The enquiry
officer has found the charge proved.
28. We have gone through the enquiry report and found therefrom
that no complaint whatsoever has been agitated on behalf of the
respondent-writ petitioner regarding the violation of principle of
natural justice or even seeking any documents, rather, it would be
evident from the inquiry report that the writ petitioner has also put-
forth his defence and even cross-examined the witnesses.
29. The inquiry officer has found the charge proved. The same has
been accepted by the disciplinary authority and after following the
procedure, the order of punishment of dismissal has been passed.
The same has been upheld by the appellate authority vide order
dated 26.12.2001.
30. A representation has been filed on 15.09.2008 informing that
he has already been acquitted in the criminal case vide judgment
dated 29.08.2008 and as such, the order of dismissal may be
recalled. The said representation was not addressed on 04.10.2008.
31. The writ petitioner has approached to this Court by filing writ
petition being W.P.(S) No.569 of 2009 by challenging the order
passed by the disciplinary authority, the appellate authority and the
order rejecting the representation dated 04.10.2008.
32. The appellate order has been quashed and set aside by the
learned Single Judge on the ground of violation of principle of natural
justice, since, the reason has been assigned that the relevant
documents have not been supplied to the writ petitioner which was
considered by the enquiry officer.
33. The writ petitioner thereafter remained silent for more than 8
years. The writ petitioner was acquitted from the criminal liability vide
judgment dated 29.08.2008, then, he has filed the representation
dated 15.09.2008 for recall of the order of dismissal but the same
was also rejected vide order dated 04.10.2008 and it is then only the
writ petition has been filed.
34. It is thus, evident that the respondent-writ petitioner has
admitted the order of dismissal for about 8 years and only thereafter,
he has preferred the writ petition on rejection of his representation
denying the recall of the order of dismissal on the ground of his
acquittal from the criminal liability.
35. The ground has been taken on behalf of the respondent-writ
petitioner that criminal case as per the FIR instituted against the writ
petitioner was the basis of initiation of departmental proceeding.
36. It has been submitted that the moment, the judgment of
acquittal has been passed in the criminal case, then, the normal
course would be to recall the order of dismissal passed on
conclusion of departmental proceeding.
37. The FIR admittedly was for theft of the material, i.e., Brass
Guides and based upon that, the departmental proceeding has been
initiated on the ground of theft of the article of the Bokaro Steel
Limited from its premises. However, the writ petitioner has been
acquitted. But the basis of initiation of departmental proceeding is
that the dereliction in duty, misconduct and indiscipline.
38. The admitted fact as per the record of the criminal case as also
the judgment of acquittal that the material was stolen and found
outside the premises of the Unit and the day when the occurrence of
theft took place, the respondent/writ petitioner was on duty.
Therefore, the allegation of dereliction of duty, misconduct and
indiscipline has been leveled against the writ petitioner while
initiating the departmental proceeding.
39. The questions, in such circumstances, are:
(i) As to whether after acquittal in the criminal case, if the
departmental proceeding is quite different to that of the FIR, any
bearing of judgment of acquittal in criminal case will be upon the final
decision taken by the disciplinary authority of dismissal on its
conclusion.
(ii) As to whether the charge as has been leveled in the
memorandum of charge in the departmental proceeding, can be said
to be unjust, when as per the judgment of acquittal, the material was
found to stolen but due to no evidence against the writ petitioner, he
has been acquitted but the fact remains that the writ petitioner was
on duty and the material was found to be outside the premises of the
Unit.
(iii) Whether, the interference shown by the learned Single
Judge in the order passed by the appellate authority on the ground of
violation of principle of natural justice after accepting the said order
of dismissal for about eight years, can be said to be just and proper.
40. All the issues are interlinked and as such, are being taken
together for its consideration.
41. But, before doing so, this Court is of the view that legal position
in this respect needs to be referred herein. (M. Paul Anthony)
42. Reference of the judgment rendered by the Hon'ble Apex Court
in the case of M. Paul. Anthony vs. Bharat Gold Mines Ltd.,
reported in (1999) 3 SCC 679 is required to be made in which one of
the grounds had been taken of the acquittal in the criminal case. Law
is well settled as has been settled in the said case that the
departmental and judicial proceeding are on two different pedestal
having no bearing to each other but the question is of complex nature
then the departmental proceeding is to await outcome of the criminal
case. Relevant paragraph of the said judgment is being referred as
under:-
"22. The conclusions which are deducible from various
decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a
criminal case can proceed simultaneously as there is no
bar in their being conducted simultaneously, though
separately.
(ii) If the departmental proceedings and the criminal
case are based on identical and similar set of facts and
the charge in the criminal case against the delinquent
employee is of a grave nature which involves
complicated questions of law and fact, it would be
desirable to stay the departmental proceedings till the
conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is
grave and whether complicated questions of fact and
law are involved in that case, will depend upon the
nature of offence, the nature of the case launched
against the employee on the basis of evidence and
material collected against him during investigation or as
reflected in the charge-sheet. (iv) The factors mentioned
at (ii) and (iii) above cannot be considered in isolation to
stay the departmental proceedings but due regard has
to be given to the fact that the departmental proceedings
cannot be unduly delayed. (v.) If the criminal case does
not proceed or its disposal is being unduly delayed, the
departmental proceedings, even if they were stayed on
account of the pendency of the criminal case, can be
resumed and proceeded with so as to conclude them at
an early date, so that if the employee is found not guilty
his honour may be vindicated and in case he is found
guilty, the administration may get rid of him at the
earliest."
43. It is evident from the judicial pronouncements as have been
settled by the Hon'ble Apex Court, as referred hereinabove that both
the proceedings, i.e., the departmental proceeding and the criminal
proceeding are to run parallel, having no bearing with each other.
However, subject to exception as has been held by the Hon'ble Apex
Court in the case of M. Paul. Anthony (supra), wherein, in a case of
complex nature where the evidence cannot be segregated, rather, the
evidences are overlapping to each other, then, the departmental
proceeding is to wait for the outcome of the criminal case.
44. Here the admitted case is that no endeavour has ever been
taken by the respondent for keeping the departmental proceeding in
abeyance waiting for the outcome of the criminal proceeding, rather,
the respondent writ petitioner has participated in the disciplinary
proceeding as also contested the same.
45. The charge in the criminal case, although, subsequently, has
been found to be not proved against the writ petitioner due to the
reason of no evidence, but, it would be evident from the inquiry report
that charge of dereliction, misconduct and indiscipline have been
found to be proved.
46. The inquiry officer has taken into consideration that the day
when the theft took place, the respondent/writ petitioner was on duty
and theft material was found from outside the premise of the Unit,
based upon that, disciplinary authority has found the dereliction of
duty against the writ petitioner, which led in formulating the charge for
the purpose of initiation of departmental proceeding.
47. The inquiry officer has considered the aforesaid and after
considering the defence taken by the respondent/writ petitioner, has
found the charge proved.
48. The acquittal in criminal case is based upon no evidence,
while, in the departmental proceeding, the inquiry officer has found the
charge proved on appreciation of the rival stand taken on behalf of the
disciplinary authority and the delinquent employee, i.e., respondent-
writ petitioner.
49. The law since is settled that the criminal case and the
departmental proceeding are based upon two parameters. In the
criminal case, the charge is to be proved beyond all reasonable
doubts, while, in the departmental proceeding, the principle applicable
is the preponderance of probability. But it is not that merely on the
basis of preponderance, the order of punishment is to be passed,
rather, even in coming to the conclusion with respect to the issue of
preponderance, the cogent evidence is to be there, reference in this
regard may be made to the judgment rendered by the Hon'ble Apex
Court in the case of State of Karnataka and Anr. Vs. Umesh,
reported in (2022) 6 SCC 563, wherein, at paragraphs- 18 & 19 it has
been held that mere on probabilities, no punishment can be imposed
in the departmental proceeding. For ready reference, the same is
being referred as under:-
"18. In the course of the submissions, the respondents placed
reliance on the decision in Union of India v. Gyan Chand
Chattar [Union of India v. Gyan Chand Chattar, (2009) 12 SCC
78]. In that case, six charges were framed against the
respondent. One of the charges was that he demanded a
commission of 1% for paying the railway staff. The enquiry
officer found all the six charges proved. The disciplinary
authority agreed with those findings and imposed the
punishment of reversion to a lower rank. Allowing the petition
under Article 226 of the Constitution, the High Court observed
that there was no evidence to hold that he was guilty of the
charge of bribery since the witnesses only said that the
motive/reason for not making the payment could be the
expectation of a commission amount. The respondent placed
reliance on the following passages from the decision : (SCC pp.
85 & 87, paras 21 & 31)
"21. Such a serious charge of corruption requires to be
proved to the hilt as it brings both civil and criminal
consequences upon the employee concerned. He would be
liable to be prosecuted and would also be liable to suffer
severest penalty awardable in such cases. Therefore, such a
grave charge of quasicriminal nature was required to be
proved beyond the shadow of doubt and to the hilt. It cannot
be proved on mere probabilities.
31. ... wherein it has been held that the punishment should
always be proportionate to the gravity of the misconduct.
However, in a case of corruption, the only punishment is
dismissal from service. Therefore, the charge of corruption
must always be dealt with keeping in mind that it has both
civil and criminal consequences."
19. The observations in para 21 of Gyan Chand Chattar case
[Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78] are
not the ratio decidendi of the case. These observations were
made while discussing the judgment [Union of India v. Gyan
Chand Chattar, 2002 SCC OnLine Guj 548] of the High Court.
The ratio of the judgment emerges in the subsequent passages
of the judgment, where the test of relevant material and
compliance with natural justice as laid down in Rattan Singh
[State of Haryana v. Rattan Singh, (1977) 2 SCC 491] was
reiterated : (Gyan Chand Chattar case [Union of India v. Gyan
Chand Chattar, (2009) 12 SCC 78] , SCC p. 88, paras 35-36)
"35. ... an enquiry is to be conducted against any person
giving strict adherence to the statutory provisions and
principles of natural justice. The charges should be specific,
definite and giving details of the incident which formed the
basis of charges. No enquiry can be sustained on vague
charges. Enquiry has to be conducted fairly, objectively and
not subjectively. Finding should not be perverse or
unreasonable, nor the same should be based on conjectures
and surmises. There is a distinction in proof and suspicion.
Every act or omission on the part of the delinquent cannot be
a misconduct. The authority must record reasons for arriving
at the finding of fact in the context of the statute defining the
misconduct.
36. In fact, initiation of the enquiry against the respondent
appears to be the outcome of anguish of superior officers as
there had been an agitation by the railway staff demanding
the payment of pay and allowances and they detained the
train illegally and there has been too much hue and cry for
several hours on the railway station. The enquiry officer has
taken into consideration the nonexisting material and failed to
consider the relevant material and finding of all facts
recorded by him cannot be sustained in the eye of the law."
(emphasis supplied) On the charge of corruption, the Court
observed in the above decision that there was no relevant
material to sustain the conviction of the respondent since
there was only hearsay evidence where the witnesses
assumed that the motive for not paying the railway staff
"could be" corruption. Therefore, the standard that was
applied by the Court for determining the validity of the
departmental proceedings was whether (i) there was relevant
material for arriving at the finding; and (ii) the principles of
natural justice were complied with."
50. Further, in the case of High Court of Judicature at Bombay
Vs. Uday Singh and others, reported in (1997) 5 SCC 129, the law
has been laid down that in the departmental proceeding the cogent
evidence is required to be there for inflicting punishment. For ready
reference, paragraph-10 is being referred as under:
"-------- the doctrine of proof beyond doubt has no application.
Preponderance of probabilities and some material on record
would be necessary to reach a conclusion whether or not the
delinquent has committed misconduct-------."
51. This Court has considered the inquiry report on the premise of
the aforesaid principle as to whether the charge which has been
proved against the writ petitioner by the inquiry officer, will be said to
be merely on the basis of preponderance of probability having any
nexus with any cogent evidence.
52. This Court has found after going through the inquiry report that
it is not that only on the preponderance of probability, the charge has
been found to be proved against the respondent writ petitioner, rather,
the evidence of the various witnesses have been recorded, as also,
they have been cross-examined by the writ petitioner and on taking
into consideration, the rival ground taken on behalf of the parties, the
charge has been found to be proved. Therefore, it is not a case where
there is no cogent evidence in coming to the conclusion on the basis
of the principle of preponderance of probability, the inquiry officer has
reached to the conclusion of proving the charge against the writ
petitioner.
53. The moment, the charge has been proved which has been
accepted by the disciplinary authority, then, the charge will remain
intact and the same is to be questioned by the delinquent employee, if
aggrieved.
54. However, the writ petitioner has challenged the same by filing
an appeal but the appellate authority has also upheld the order
passed by the disciplinary authority.
55. The writ petitioner has taken the plea of violation of principle of
natural justice of document having not been supplied by the inquiry
officer. But, it is evident from the inquiry report that no such ground
has ever been taken by the delinquent employee in course of inquiry
proceeding and even not before the appellate authority, rather, the
order of dismissal as also the order passed by the appellate authority
has been accepted for about eight years.
56. The respondent writ petitioner when acquitted has made a
representation on 15.09.2008 for recall of the order of dismissal. The
question of recall of the order of dismissal, based upon the acquittal,
will not be permissible in the facts and circumstances of the case,
reason being that, there is specific finding recorded by the inquiry
officer, which on acceptance by the disciplinary authority, has been
acted upon by passing the order of punishment of dismissal.
57. The principle for criminal proceeding and the disciplinary
proceeding since are on two different lines being allowed to run
parallel, then, where is the question of bearing of consequence of
criminal proceeding which resulted in acquittal to bind the proceeding
already concluded under the Conduct Rules that too after accepting
the order of dismissal fairly for a period of about eight years.
58. It has been contended on behalf of the respondent writ
petitioner that due to pendency of the criminal case, the order of
dismissal had not been challenged and the same has only been
challenged after acquittal and the denial of the recall of the order of
dismissal was passed but the said ground cannot be said to be just
and proper, reason being that, the dismissal order if would have been
passed without conclusion of the disciplinary proceeding, rather,
based upon the outcome of the criminal case if resulted into
conviction and subsequent thereto, the judgment of conviction if
reversed by the appellate authority to that of acquittal, then, in such
circumstances, the order of dismissal is required to be recalled,
reason being that the very basis of dismissal will be the conviction in
the criminal case and the moment, the conviction will be reversed to
that of acquittal, then the fundamental of the decision of dismissal will
be said to be not in existence and in that view of the matter, the
consequence would be that the order of dismissal has to go, since,
the foundation itself is not in existence.
59. But that is not the situation herein, rather, the writ petitioner has
allowed to continue the departmental proceeding without any
demeanour and contested the same, as would be evident from the
inquiry report and even accepted the order passed by the disciplinary
authority/appellate authority about eight years and thereafter, he has
made prayer requesting to recall the order of dismissal on the ground
of acquittal in criminal case.
60. Therefore, this Court is of the view that the order of dismissal
has been passed by the disciplinary authority on conclusion of the
regular departmental proceeding having based upon the finding
recorded by the inquiry officer and as such, the judgment of acquittal
in the criminal case, will have no bearing.
61. The contention on behalf of the petitioner/respondent has been
raised that the very fundamental of the disciplinary authority is the FIR
and the moment the FIR has been culminated into acquittal, the very
charge which is the basis of the disciplinary authority, will have to be
quashed.
62. But, this Court is not in agreement with this ground, reason
being that, in the FIR, the allegation is theft of material from the
premise of the Unit and in the departmental proceeding the allegation
is of dereliction of duty, misconduct and indiscipline.
63. The judgment of acquittal, as would appear from the judgment
passed in the criminal case is based upon no evidence. However, the
charge has been framed that the material was recovered from outside
the premise which suggests that the material was stolen, otherwise, it
could not have been found outside the premise and if in such
circumstances, the charge has been framed on the ground of
dereliction of duty, misconduct and indiscipline which cannot be said
to be unjust and improper.
64. The learned Single Judge has passed an order quashing the
order passed by the appellate authority by remitting it for passing the
order afresh on the ground of violation of principle of natural justice
but as we have already referred hereinabove by making reference of
the inquiry report that no issue of violation of principle of natural
justice has ever been raised by the writ petitioner.
65. Further, the learned Single Judge has taken note at paragraph-
17 by admitting the fact that the learned counsel for the petitioner
though has argued the grounds of non-supply of documents relied
upon by the enquiry officer, non-examination of defence witnesses,
finding based on surmises and conjectures, proportionality of
punishment, has not been pleaded in the writ petition, but even then,
looking to the facts and circumstances of the case and in the interest
of justice, the order in appeal should be quashed and the appellate
authority should reconsider the case of the writ petitioner. It is thus,
evident that the learned Single in the interest of justice, has quashed
the order of appeal.
66. The learned Single Judge ought to have clarified that what led
him to come to the conclusion in quashing the appellate order by
making the reference the word "in the interest of justice". The word "in
the interest of justice" applies for both the parties and not in isolation
to the delinquent officer, rather, the proper course is to weigh balance
for coming to the conclusion, based upon the proposition of law, then,
it will be said to be in the interest of justice.
67. Further, the learned Single Judge, although, has quashed the
order of appellate authority dated 26.12.2001 but the order passed in
the representation vide order dated 04.10.2008, was also challenged,
has not been quashed, meaning thereby, the order passed by the
appellate authority on 26.12.2001, has been quashed and set aside
after acceptance of the said order for about eight years that too
without any cogent reason assigned in the impugned order.
68. This Court, on consideration of the aforesaid reason, is of the
view that the judgment passed by learned Single Judge, is not found
to be just and proper and as such, the same needs to be interfered
with on the basis of the discussion made hereinabove.
69. Accordingly, order dated 04.05.2021 passed by the learned
Single Judge of this Court in W.P.(S) No.569 of 2009, is, hereby
quashed and set aside.
70. In the result, the instant appeal is allowed.
71. In consequence thereof, the writ petition being W.P.(S) No.569
of 2009 is dismissed.
72. Pending Interlocutory Application(s), if any, stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree
(Arun Kumar Rai, J.)
(Arun Kumar Rai, J.)
Rohit/- A.F.R.
